Overnite Transportation Co.

OVERNITE TRANSPORTATION COMPANY 1271 APPENDIX E NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT refuse to bargain collectively with any local union affiliated with International Retail Clerks Association, AFL-CIO, which is the exclusive bar- gaining representative of our employees in an appropriate bargaining unit. WE WILL NOT encourage, assist, or instigate our employees to circulate and file union decertification petitions or to discontinue paying union dues or to resign from a union. WE WILL NOT lay off or otherwise discriminate against employees because of their refusal to reveal whether they have given statements to Board agents, what the contents of such statements are, or their knowledge of matters pertaining to unfair labor practice charges filed against us. WE WILL NOT request our employees to furnish us with copies of statements they may have given to the National Labor Relations Board or interrogate them with respect to the contents thereof. WE WILL NOT poll or interrogate our employees regarding their preference for or against union representation, offer, grant, or promise our employees improved benefits in terms and conditions of employment to induce them to reject their collective-bargaining representative, or threaten our employees with discharge or disciplinary action for refusing to state whether they have been interviewed by a Board agent or have given affidavits or statements in connection therewith, or for refusing to answer any questions during our investigation of unfair labor practice charges filed against us. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to join or assist International Retail Clerks Associa- tion, AFL-CIO, or any of its locals, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from becoming or remain- ing, members of any labor organization. MONTGOMERY WARD & CO., INCORPORATED, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any question concerning this notice or com- pliance with its provisions. Overnite Transportation Company and Truck Drivers and Help- ers Local Union 728, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 10-CA-5666. September 15, 1965 DECISION AND ORDER On November 30, 1964, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that the Respondent 154 NLRB No. 98. 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed as to such allegations. Thereafter, the General Counsel, the Charging Party, and the Respondent filed excep- tions to the Trial Examiner's Decision. The General Counsel and the Charging Party also filed supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions,2 and recom- mendations 3 of the Trial Examiner only to the extent consistent with this Decision and Order. The General Counsel and the Charging Party except to the Trial Examiner's holding that the Respondent did not violate the Act by terminating the services of an employee who refused, in the course of his employment, to cross a picket line established at the premises of the Respondent's customer. The record shows the following facts : The Respondent maintains an office and terminal facilities in At- lanta, Georgia, from which it operates as a common carrier by motor vehicle in the interstate transportation of freight. Its Atlanta cus- tomers are served by city pickup-and-delivery men driving radio- 1 In crediting Martin's testimony over that given by Ratledge, regarding the latter's discharge, the Trial Examiner compares the physical characteristics of the two men. We are unable to ascertain what weight, if any, the Trial Examiner places on the relative physical attributes of these men. In the circumstances of this case, we fail to see the relevance of this comparison and disavow any reliance upon it. Further, we disavow any reliance upon the Trial Examiner's observation regarding "the unlikelihood that Respondent would risk discharging a leader of the union activity [Ratledgel, a few days before the date of the Board-conducted election, if the discharge could be attributed to his union activity." However, we shall affirm the credibility findings of the Trial Examiner as a clear preponderance of all the relevant evidence does not demonstrate that they are incorrect. Standard Dry Walt Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). 2 We conclude, in substantial agreement with the Trial Examiner and particularly in the light of the other unfair labor practices found herein, including interrogations of employees and threats of economic reprisal, that the first numbered paragraph of the notice posted by the Respondent at its terminal in February 1964 and sent to each em- ployee violates Section 8(a) (1) of the Act. Sagamore Shirt Company, d/b/a Spruce Pine Manufacturing Company, 158 NLRB 309. 8 The Trial Examiner concluded that the Respondent promised benefits to employees if they would reject the Union in the representation election held herein. We find nothing in the record to warrant this conclusion. Accordingly, we shall modify the Trial Examiner's Recommended Order by deleting all reference to such conduct. OVERNITE TRANSPORTATION COMPANY 1273 equipped trucks. These employees are dispatched from the Respond- ent's terminal to various sections of the city to make deliveries of freight. They are assigned no particular route. After completing their deliveries, they pick up freight in accordance with instructions received by radio from the terminal. In this manner, the driver near- est the customer usually receives the call. Wayne O. Styles was employed by the Respondent as a city pickup- and-delivery truckdriver from June 1963 until March 27, 1964, when he was terminated. On that date, he had made deliveries as usual and had, during the course of the day, received instructions from Thomas D. Goddard, city pickup dispatcher, to pick up freight from two customers on Moreland Avenue in the city of Atlanta. Styles proceeded first to the Warren Company, a regular customer, but drove past without stopping, having noticed a picket line on the company premises. The picket line was established by Local 728, the same Union which had been organizing the Respondent's employees since January 1964 4 Styles went to the second customer on Moreland Avenue. After taking on freight there, he called the terminal and spoke to Jesse Arrington, another dispatcher, informing him that he wanted to honor the picket line established at the Warren Company. Arrington made no comment, merely dispatching Styles to an "up- town" location to make an additional pickup. After making that stop, Styles again radioed the terminal. This time his call was received by Goddard who inquired why Styles had not picked up the freight at the Warren Company. According to Goddard's testimony, Styles replied that the gates were locked and there was nobody to let him in. Satisfying himself that the Warren Company had an employee on the gates and that Styles would be able to gain admittance, Goddard again dispatched Styles to the picketed customer, telling him to make the pickup before the day was over. Styles returned to the Warren Company and, observing that the picket line was still there, refused to enter upon the customer's premises. Goddard thereupon dispatched another driver to the Warren Company who picked up the freight immediately and without incident. Upon returning to the terminal, Styles was called into the office of Albert P. Vigue, the Respondent's district manager. Vigue told Styles, according to the latter's testimony, that he would have to let Styles go "for not following direct orders," and further that as a matter of company policy, "we didn't honor pickets anywhere, that we picked up freight everywhere." Styles was then terminated. The record contains no evidence of a replacement for Styles beyond mention of the driver who was dispatched to the Warren Company 4 Local 728 won an election held on April 3, 1964, and was certified as the representa- tive of the Respondent's employees on May 1, 1964 ( Case No. 10-RC-5812). 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Styles refused to cross the picket line. There is further testi- mony to the effect that five other employees subsequently crossed the picket line when they were dispatched to the Warren Company. Based on the foregoing, the Trial Examiner, although not expressly finding that the Respondent terminated the services of Styles only to preserve the efficient operation of its business, concluded that the Respondent did not unlawfully discharge Styles or thereafter unlaw- fully refuse to reinstate him. He held that by refusing to cross the picket line at the Warren Company, Styles acquired the status of an economic striker, and that Styles was thereafter "temporarily replaced." We do not agree with these conclusions of the Trial Examiner. The Board has held, with court approval, that employees engage in pro- tected concerted activity when they respect a picket line established at the premises of another employer'5 Recognizing the right of an employer to run his business despite this protected activity, the Board has held that an employer does not violate the Act in terminating such employees if the employer acts "only to preserve efficient operation of his business, and . . . only so [that he] could immediately or within a short period thereafter replace them with others willing to perform the scheduled work. . . ." [Emphasis supplied.] 6 At the same time, however, it is the Board's view that if the protected right of employ- ees is to have any meaning at all, then the employer who would justify a discharge on the basis of an overriding employer interest must pre- sent more than a mere showing that someone else may have to do the work. That fact is inherent in every situation where employees fail to perform a portion of their assigned tasks by respecting a picket line. To accept it alone as conclusive proof that their services were termi- nated solely to preserve efficient operation of the employer's business would be to render illusory any finding that the employees engaged in protected concerted activity. It would leave the refusal to cross a picket line without any protection at all. Clearly, what is required is the balancing of two opposing rights, and it is only when the employ- er's business need to replace the employees is such as clearly to out- weigh the employees' right to engage in protected activity that an invasion of the statutory right is justified. The facts in this case are clearly distinguishable from those in Redwing. In that case, the Board upheld as lawful the termination of employees who had been permanently assigned to certain projects of the employer's customer and who refused to cross a picket line established at the customer's premises. After observing that it was 6 Redwing Carriers, Inc., et al., 137 NLRB 1545, enfd . sub nom. Teamsters , Chauffeurs and Helpers Local Union No. 79, Teamsters v. N.L.R.B., 325 F. 2d 1011 (C.A.D.C. ), cert. denied 377 U.S. 905; Truck Drivers Union Local No. 413, Teamsters (Patton Warehouse, Inc.), 334 F. 2d 539, 545 , cert. denied 379 U.S. 916. 6 Redwing Carriers, Inc., supra, at 1547. OVERNITE TRANSPORTATION COMPANY 1275 necessary for the employer to reassign other employees from their normal jobs and also hire new men to do the work, the Board found that the employer's action was taken entirely for the purpose of con- tinuing business operations. The Board also found that these events occurred in a context totally devoid of union animus. The facts here fall far short of those in Redwing. In this case, the Respondent's city pickup-and-delivery men are not assigned to reg- ular routes. They receive pickup assignments by radio continually during the course of the day's work. When Styles refused to cross the picket line at the Warren Company, the Respondent's dispatcher sent another driver who made the pickup immediately and without incident. Adjustments in the assignment of trucks within the geo- graphical sphere of their operation would seem commonplace, given the nature of the Respondent's business, and we are satisfied that the performance of the rescheduled work by the other driver comports with his "normal job" under the circumstances of this case. We note, as well, that Styles continued to make other assigned stops following his initial confrontation with the picket line, and, for all that appears in the record, he did not return to the terminal until the end of the. regular working day. We find, moreover, that the Respondent has not shown that Styles' conduct rendered him incapable of performing his job or that it disrupted the Respondent's business in any significant respect.' In fact, the Respondent, by terminating Styles for disobey- ing "direct orders," equated the employee's refusal to cross the picket line with an act of insubordination, showing little or no regard for the countervailing employee rights that were examined and balanced in Redwing. On the basis of the foregoing, we find that the Respondent's inter- ference with Styles' right to respect the picket line at the Warren Com- pany outweighs whatever business justification the Respondent urges as its reason for discharging him. Accordingly, we conclude that by discharging Styles, the Respondent violated Section 8(a) (1) of the Act. Furthermore, in view of the Respondent's demonstrated union ani- mus, as evidenced by the Trial Examiner's findings of coercive interro- gation and threats of economic reprisal, which we hereby affirm, we believe an inference is reasonably warranted that Style's indication. of union sympathy, reflected by his refusal to cross a picket line of the same union that was seeking to gain organization of Respondent's employees, was a contributing consideration in the Respondent's deci- sion to discharge him. Conduct even in part so motivated tends to dis- courage union membership. For these reasons, and having previously 7 It is evident from Styles' undisputed testimony, to the effect that Goddard merely told him to make the pickup at the Warren Company "before the day was out," that the Respondent did not regard the pickup as a matter of particular urgency. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that the Respondent did not discharge Styles for a justifiable business purpose, we conclude that the Respondent violated not only Section 8(a) (1) of the Act but also Section 8(a) (3). THE REMEDY Having found that the Respondent interfered with the right of Wayne O. Styles to engage in protected concerted activity by discharg- ing him on March 27, 1964, for refusing to cross the picket line at the Warren Company, we shall require the Respondent to offer him full reinstatement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges. We shall also require that the Respondent make Styles whole for any loss of pay suffered by reason of his discharge. Loss of pay, as aforesaid, shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent per annum, as set forth in Isis Plumbing ct Heating Co., 138 NLRB 716. The unfair labor practices committed by the Respondent involve con- duct in derogation of the principles of good-faith collective bargaining. The inference is warranted that the Respondent maintains an attitude of opposition to the purposes of the Act with respect to the protection of employee rights and that a potential threat of future violations exists. Accordingly, we shall order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent, Overnite Transportation Company, is an employer engaged in commerce within the meaning of the Act, and Truck Drivers and Helpers Local Union 728, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. 2. The Respondent, by paragraph (1) of the notice of February 1964, Vigue's interrogation of Simms and Avery, and Marks' conversation with Ratledge, made threats to employees to persuade them to refrain from union membership and union activity, and to vote against the Union in a Board-conducted election, in violation of Section 8(a) (1) of the Act. 3. By discharging Wayne O. Styles on March 27,1964, for engaging in protected concerted activity, the Respondent has violated Section 8(a) (1) and (3) of the Act. 4. The Respondent did not violate the Act by District Manager Vigue's conversation with Ratledge on February 17, 1964, or by Dock Foreman Baker's conversation with him at the end of March 1964, or by paragraphs (2) through (6) of the notice to employees of February 1964. OVERNITE TRANSPORTATION COMPANY 1277 5. The Respondent has not discriminated against employees in viola- tion of Section 8 (a) (1) and ( 3) of the Act by the discharge of employee Ratledge on April 2,1964, or by not reinstating him or offering to rein- state him. 6. The aforesaid unfair labor practices found to have been committed by the Respondent are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner , as modified herein, and orders that the Respondent, Overnite Transportation Com- pany, Atlanta, Georgia, its officers, agents , successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified : 1. Substitute the following as paragraphs 1(c) and (d) of the Trial Examiner's Recommended Order: "(c) Interfering with the right of employees to engage in protected concerted activity or discouraging membership in any labor organiza- tion by discharging employees in violation of Section 8(a) (1) or (3) of the Act. "(d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist Truck Drivers and Helpers Local Union 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities." 2. Add the following as paragraphs 2(a), (b), and (c) to the Trial Examiner's Recommended Order, the present paragraphs 2 (a) and (b) being relettered 2(d) and (e), respectively: "(a) Offer to Wayne O. Styles immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may suffered as a result of his discharge, as provided in the section of this Decision entitled `The Remedy.' "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the following as the third and fourth indented para- graphs of the Appendix attached to the Trial Examiner's Decision : WE WILL NOT interefre with the right of employees to engage in protected concerted activity by discharging them in violation of Section 8(a) (1) or (3) of the Act. WE WILL NOT interfere with the right of employees to engage in coerce our employees in the exercise of the right to self -organiza- tion, to form, join, or assist Truck Drivers and Helpers Local Union 728, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 4. Add the following as the fifth indented paragraph of the Appen- dix 8 attached to the Trial Examiner's Decision : WE WILL offer to Wayne O. Styles immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of his discharge. 5. Add the following immediately below the signature line at the bottom of the Appendix attached to the Trial Examiner's Decision : NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. IT IS FURTHER ORDERED that those allegations of the complaint alleg- ing violations of Section 8(a) (1) and (3) of the Act not herein so found, be, and they hereby are, dismissed. s The telephone number for Region 10, appearing at the bottom of the Appendix at- tached to the Trial Examiner's Decision, is amended to read: Telephone No. 526-5741. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, Case No. 10-CA-5666, was brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on a charge filed April 2 and amended on April 3, 1964, against Overnite Transporta- tion Company, herein called Respondent, by Truck Drivers and Helpers Local Union OVERNITE TRANSPORTATION COMPANY 1279 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union. On June 5, 1964, the General Counsel of the National Labor Relations Board issued a complaint against Respondent, alleging therein that it had violated Section 8 (a) (1) and (3) of the Act. The allegations of Section 8(a) (1) violations are the posting and distributing of a notice, and conduct by Respondent District Manager Al Vigue and Safety Director Lonnie Marks consisting of interrogation of employees regarding their union activity and membership, and threats to employees that if they selected the Union as bargain- ing representative Respondent would refuse to sign a contract with it,, would down- grade their job classifications, and would discharge and otherwise harm' them in their jobs. The allegations of Section 8 (a) (3) violations are the discriminatory discharges of Fred H. Ratledge and Wayne O. Styles for membership in and activities on behalf of the Union, and for other concerted activities for the purpose of collective bargain- ing and other mutual aid and protection. It is also alleged that Styles was discharged for refusing to cross a picket line of the Union at the plant of the Warren Company, Incorporated, a customer of Respondent. General Counsel's motion at the hearing for leave to strike other allegations of Section 8(a)(1) and (3) of the Act from the complaint was granted. Respondent denied all the allegations of violations of the Act in an answer filed June 15, 1964. A hearing was held on July 22, 1964, before Trial Examiner James F. Foley. General Counsel and Respondent were represented and all parties were afforded an opportunity to offer evidence, make oral arguments, and file briefs. No briefs were filed. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a Virginia corporation, with an office and place of business in Atlanta, Georgia, is a motor carrier engaged in the interstate transportation of freight. During the calendar year 1963, Respondent received in excess of $100,000 from the interstate transportation of freight. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and assumption of jurisdiction will effectuate the purposes of the Act. If. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background evidence The Union began organizational activity at Respondent's Atlanta, Georgia, terminal in January 1964.1 The terminal employees were unorganized. Employee leaders of the organizational activity were Herman Wyke, H. F. Dull, Fred H. Ratledge, Walter Stanley, Samuel Ivory, George Hill, and another employee with the surname of Troutt. On or about January 16, 1964, the Union prepared a notice on the letter- head bearing the identification of "TEAMSTERS #728 ORGANIZING COM- MITTEE," that the undersigned employees of the Respondent had agreed to serve as members of the Union's organizing committee at Respondent's terminal, had signed membership application cards, and intended "to promote in every legal manner the completion of organization of the Overnite employees of the Atlanta Terminal by Teamsters Local 728, and we so desire to inform the Company." Forty-one of Respondent's employees at its Atlanta terminal signed this notice. Shortly thereafter the notice was sent by the Union to Respondent. On April 3, 1964, a Board-conducted election was held at Respondent's Atlanta terminal in a unit of 218 eligible voters comprised of drivers and terminal workers. The Union received a majority of the votes cast. On May 1, 1964, the Board by the Regional Director certified that these employees selected the Union as collective- bargaining representative, and that the Union was their exclusive representative. Prior to the election, Albert P. Vigue, district agent in charge of the Georgia area for Respondent, including operations at and out of the Atlanta terminal, had conversa- tions with many employees in his office, in the terminal yard, and at other locations 'All references to, Respondent hereafter shall refer to its Atlanta terminal and the terminal operations In Atlanta unless otherwise indicated. 21 have taken official notice of the record in Overnite Transportation Company, Case No. 10-RC-5812. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the terminal, in which he related what he considered to be advantages of working for Respondent, and stated a position that Respondent did not favor the selection by the employees of a union as their collective-bargaining representative. B. Respondent's notice to employees regarding union activity In February 1964, Respondent posted on the bulletin board for employees at the terminal and sent to each one of the terminal employees, the following blue-banded printed notice: TO ALL EMPLOYEES Since the Teamsters Union is putting on another campaign to get in here, a good many questions have arisen with regard to the following matters. We have decided to state the Company's position on these questions as clearly as we can for everybody alike: (1) This matter is, of course, one of concern to the Company. It is also, however, a matter of serious concern to you and our sincere belief is that if the Union were to get in here it would not work to your benefit but, in the long run would itself operate to your serious harm. (2) It is our intention to oppose the Union and by every proper means to prevent it from coming into this operation. (3) We would like to make it clear that it is not necessary, and it is not ever going to be necessary, for anybody to belong to the Teamsters Union, or any other Union, in order to work for this Company. (4) Those who might join or belong to a Union are not going to get any advantages or any preferred treatment of any sort over those who do not join or belong to any Union. (5) If anybody causes you any trouble at your work or puts you under any sort of pressure to join the Union, you should let the Company know, and we will undertake to see that this is stopped. (6) No person will be allowed to carry on Union organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge. Anybody who tells you anything contrary to the foregoing is not telling the truth. OVERNITE TRANSPORTATION COMPANY C. Vigue's preelection conversations with Simms and Avery Henry C. Simms, a tractor-trailer driver, delivers and picks up freight for Respond- ent. About 11 a.m. on March 31, 1964, Dispatcher J. B. Jones told him that District Agent Vigue wanted to see him. He went to see Vigue, and had a conversation with him. The conversation began about 11:10 a m. It was one of the many Vigue had with employees prior to the election. Vigue asked Simms how he was doing and how the job was coming along. Simms answered, "Fine, sir, thank you." Vigue and Simms reminisced about their younger days. Simms told Vigue he had been raised on a farm. Vigue related his rise through the ranks of the Respondent Company. Vigue then said, "You know the Union is trying to get in here," and asked Simms if he was going to vote "yes" or "no" in the election. Simms answered that if he answered "no" or "yes" be would be lying as he was still making up his mind how he would vote. He said to Vigue that he wanted time to think about it. He also said to Vigue that his father-in-law had told him the Union was crooked. Vigue then said that the ring- leaders of the organizational activity were Wyke, Dull, and Ratledge, and the sooner the Company got rid of them, it would be a better place to work. At the end of the conversation, which came about noon, Vigue said to Simms to "go out and do a good job for the Company, and when this election comes up to vote `no,' to vote this thing out." Vigue also said that the Respondent's pension and retirement plans were superior to those that the Union provides in its contracts.3 8 I have credited Simms' testimony of this conversation after considering the demeanor testimony of both Simms and Vigue, and the other testimony of both of these witnesses, in the context of the record made in the case . Ratledge , as discussed in fra, was dis- charged on April 2, 1964. He was the only one on the organizing committee who was discharged. Simms testified that he attended union meetings , signed a union card, and engaged in other activity on behalf of the Union . He also testified he was not mis- treated by Respondent, and that Vigue did not ask him if he had signed a union card. OVERNITE TRANSPORTATION COMPANY 1281 Daniel Avery, a tractor-trailer, city pickup driver, had a conversation with Vigue on March 21, 1964, after the latter had talked with Simms. When Avery reported for work at 11 a.m., Dispatcher Jesse Arrington told him Vigue wanted to talk to him. He waited outside Vigue's office from 11 a.m. until Vigue came out of his office with Avery about 12 o'clock noon .4 He went in Vigue's office, and Vigue fol- lowed him in. They exchanged greetings. Vigue, after remarking that he had wanted to interview him sooner, but did not think that he would be able to get to it, said that they had been having a lot of trouble with the Union, and he wanted to clear up the Company's viewpoint if he could. Vigue thereupon said that Cochran has never signed a contract with the Union and was not going to do so, and that they at Overnite had never dealt with the Union before and did not believe they needed one.' Vigue continued with the observation that he was not going to ask him how he would vote, but thought he would do the right thing. He then said that they would like to depend on him as they needed all of the young drivers. He said further that if the Union came in, all of the jobs would be on "full seniority bid basis," and they had a "lot of colored boys here that has 12, 13, 14 years and a lot of them have been here eight or nine years." Avery answered, "Well, in other words, I might wind up down on the end of the docks checking freight." Vigue replied, "That's right, you might." 6 D. The discharge of Wayne O. Styles On March 27, 1964, Dispatcher Thomas D. Goddard instructed Wayne O. Styles, a city pickup and delivery driver, to pick up freight at the Warren Company, Incor- porated, in Atlanta, and at another company located in the same area. When a representative of the Warren Company called in, he informed Respondent that they were on strike, but there was no violence, and trucks had been coming in without any trouble. Styles was in Atlanta picking up and delivering freight, and received the instruction over the two-way radio hookup that Respondent has in its trucks and tractors for communication between the drivers and the terminal. The two locations were downtown, and he had to drive across town to get to them. Styles went to the Warren Company and saw that it was being picketed by the Union.? He did not stop, but went to the other company and picked up the freight at that location. After this pickup, he called in to the terminal. Goddard was at lunch and Dispatcher Jesse Arrington answered. Styles said to Arrington that he wanted to honor the picket line at Warren Company. Arrington said nothing about the Warren Company freight, but told him to pick up freight at Peachtree Candy Company, which was uptown. When Goddard returned, he was told by Arrington Avery testified that while he waited in the corridor in front of the office in which Vigue was conversing with Simms, he overheard a conversation taking place in the adjoining office of Pickup and Delivery Supervisor Nelson Chastain. Those talking were Chastain ; Dewey Baker, the dock foreman ; E. L. Fortune, assistant to the vice presi- dent ; and Roy Staples, then a management trainee, and assistant terminal manager at the time of the bearing. While the statements made by these management employees and overheard by Avery disclosed union animus, Avery was not certain of the identity of the one who made a particular statement. Since it cannot be determined which of the state- ments were made by Staples who was not a supervisor at the time, I do not give any weight to this testimony. The statements made were not alleged in the complaint as constituting an unfair labor practice, and were offered for background purposes only. They were not made in the presence of Avery. 5 Cochran is president of Respondent. 6 This is Avery's testimony, which I have credited after considering the demeanor testi- mony of Avery and Vigue, and their other testimony, in the context of the record that was made. On cross-examination, Avery gave testimony of a conversation he had with Vigue about 2 weeks before March 31. Avery had asked to see Vigue, and spoke to him about his future. Vigue indicated how he thought Avery could advance himself. He referred to advantages he had obtained as an employee of Respondent , and to the history of Respondent. Vigue also referred to a rumor going around the terminal, which Avery had heard, that President Cochran had signed a contract with the Union. Vigue said the rumor was not true. I find that this testimony of Avery on cross-examination about the earlier conversation does not rebut Avery's testimony on direct examination about the March 31 conversation. As stated , supra, the Union had been organizing the Respondent's employees since January 1964. The notice dated January 16, 1964, the Union sent to Respondent shortly after that date, supra, which was signed by Respondent's employees organizing for the Union, did not contain Styles' signature. 206-446-66-vol. 154-82 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Styles' refusal to pick up the Warren freight. Styles picked up the freight at Peachtree Candy, and again called in. Goddard answered, and asked him why he had not picked up at Warren. Styles said the gate was locked and nobody was there. Goddard called the Warren Company and talked to the shipping clerk. The latter said there was no violence, and that trucks were coming on to the premises. He also said Styles did not stop and made no attempt to drive on to the company premises. Goddard then dispatched Styles again to pick up the Warren freight. When Styles called in again and talked to Goddard he said "he didn't want to mess in their busi- ness," and was not going to pick up the freight. Goddard thereupon instructed another employee by the name of Allen to pick up this freight. Allen drove in and picked it up. Styles was in the vicinity and saw this pickup. Allen's signature was on the employees' January 16 notice of their organizing activity (supra). Styles testi- fied that when he was about to turn into the Warren Company premises, he stopped on seeing a picket in front of the premises. Three persons across the street asked him not to go in. He thereupon drove the truck across the street and did not attempt to pick up the freight. He returned to Respondent's terminal. Upon his return, Styles unloaded the freight he had on the truck. He was told by Pickup and Delivery Supervisor Nelson Chastain that District Agent Al Vigue wanted to see him. It was then about 5:30 p.m. Styles reported to Vigue in the latter's office. Walter D. Croft, the terminal manager, and second in charge was also present. Croft had informed Vigue of Styles' refusal to cross the picket line at the Warren Company. Goddard had reported the incident to Croft. Vigue asked Styles about his failure to cross the picket line at the Warren Company. Styles replied that he went to the Warren Company premises, there was a picket line, he honored it, and refused to cross it. Vigue said to Styles that the Respondent always picked up freight that was offered to it. He then said to him that he had no choice, but to fire him since he refused two direct orders from the dispatcher.8 Vigue handed Styles a check drawn on the petty cash account, and had him sign a company form entitled "NOTICE OF TERMINATION TO EMPLOYER AND RECEIPT FOR COMPENSATION DUE." 9 There is no evidence of record that Styles has ever applied to Respondent in any manner or form for work since being terminated on March 27, 1964. Respondent has picked up freight regularly at the Warren Company. In addition to Allen other employees picked it up during the picketing. E. The discharge of Fred H. Ratledge Fred H. Ratledge was discharged by Respondent on April 2, 1964, 2 days before the Board-conducted election (supra). Ratledge had been one of the employee orga- nizers for the Union since the organizational activity was begun in January 1964. It is undisputed that Respondent's officials knew he was an employee leader of the organi- zational activity. Ratledge had been employed by Respondent since August 1951. At the time of his discharge, Ratledge was a city pickup and delivery driver. He drove a tractor-trailer combination. On February 17, 1964, about 8:30 a.m., Ratledge had a conversation with District Agent Vigue in the latter's office. The conversation lasted about 15 minutes. When Ratledge reported for work that morning at 7 a.m., he found that his card was not in the rack near the timeclock. Dewey Baker, the dock foreman, informed him he did not have a card as Vigue and Terminal Manager Croft wished to see him before he 8I credit the testimony of Vigue, Croft, and A. M. Price, a vice president of all of Respondent's operations, that since Respondent began operating in 1935 It has been its policy to cross a picket line to deliver or pick up freight that is offered to it, except when there Is violence or the possibility of violence. I credit Croft's testimony that during the 19 years he had been associated with Respondent in Atlanta, it has always crossed picket lines, including those of the Union, to pick up or deliver freight except where there was violence or the possibility of violence. 8In substance, it was stated on the form that Styles Involuntarily terminated his em- ployment with Respondent at 8 p.m., March 27, 1964 ; that he delivered to Respondent all equipment in his possession, and had reached an understanding with his immediate supervisor as to the amount of money due to him as wages, and acknowledged receipt of $94.91 as the wages due; and that he had not been involved in any accident or injuries of any kind occurring during the course of his employment other than what was already, reported to Respondent. On March 30, 1964, Respondent notified the Employment Security Agency, Georgia Department of Labor, Atlanta, Georgia, of the termination of Styles on March 27, 1964, on a form of that agency entitled, "Separation Notice." Respondent stated on the form that Styles was "Discharged because: Refused to obey direct order." Styles received a copy of the form in the mail. OVERNITE TRANSPORTATION COMPANY 1283 went to work. Croft was there about 8 a.m., but Vigue arrived at 8:30. Ratledge went into Vigue's office where the conversation took place. Croft and Road Dis- patcher Watkins were also present. Vigue said he wished to state the Company's position, that he had been told that Ratledge was organizing on company property and while he was working. Vigue then said that four employees would verify this charge on the witness stand, and that if one more came into his office and told him that Ratledge was organizing on com- pany property and on working time, he was going to fire him. Ratledge denied he had been organizing on company property or working time. He said to Vigue he had been organizing on 14- or 16-hour shifts on Saturday and Sunday on his own time. Ratledge also said to Vigue that apparently he had made up his mind to fire him, and might as well do so as he felt other employees of the Company would tell him that he was "trying to organize on the clock on the premises of Overrate." He then asked Vigue if he was going to fire him, and Vigue answered, "No, go on back and see Mr. Jones [the dispatcher] and get your timecard and go back to work." Ratledge asked Vigue for the time at which he would be "clocked in," and Vigue answered, "At 8:30 o'clock." Ratledge protested, saying that his regular starting time was 7 a.m., but Vigue answered that he did not have to be there early for the benefit of employees. Ratledge was "clocked in" at 8 a.m. On or about March 1, 1964, Lonnie Marks, Respondent's director of safety, engaged Ratledge in a conversation in Respondent's terminal yard. Marks asked Ratledge how he was doing, and then invited him to come to the motel where he was staying, and have supper with him. He said he wanted to talk to him. Ratledge replied that he could not make it. Marks then said the Company never needed, and never would need, a union and would never sign a union contract. Ratledge replied, "Well, we'll see just how they go about that later." 10 About the end of March 1964, Marks and Ratledge had another conversation. It took place in Vigue's office and no one else was present. Marks said he had wanted to talk to him, but be had been in Charlotte, North Carolina, and it was the first chance he had. He asked him how he felt about the Union, and Ratledge answered that there had been no change in him whatsoever. Marks then said that he was an old hand, and they would like to have him on their side, but also did not want to talk about it. He instructed Ratledge to go back to work About the same time, Ratledge had a conversation with Dewey Baker, the dock foreman. He engaged Baker in the conversation, and asked him if he had said that he wanted him to lay off the road drivers. Baker said he did. Ratledge asked Baker the reason for such a statement, and Baker replied that a driver by the name of Churchill had reported that he had been soliciting him. He then said, "I just don't want to see you get fired, Fred." Ratledge answered that he would take care of himself, and Baker could take care of himself. On March 31, 1964, about 8:30 p.m., Ratledge was at the entrance to the H. A. W. Package Store, a small store about a mile from the terminal which sold liquor, ciga- rettes, and groceries, when Ellwood F. Martin, supervisor in charge of the mainte- nance shop at the terminal, was about to leave it They met on the threshold It is undisputed that words were exchanged and Ratledge hit Martin on the left side of his jaw. H. F. Dull, another employee leader of the union activity who was inside the store, came out and restrained Ratledge from again hitting Martin by holding his arms, and then Martin left. Ratledge testified that they met in the doorway; he asked Martin how he was doing, and Martin said "You are the son-of-a-bitch causing all the trouble down at the company"; he hit Martin; Dull came out the door and broke up the fight by running between him and Martin and grabbing him; and Martin immediately left. Ratledge also testified that he had been off duty since 6 p.m., had been at home with his wife and children, and had gone to the store to purchase cigarettes and a loaf of bread, that he did not make the purchases in view of the altercation, and had not drunk any liquor that day. On cross-examination, Ratledge testified that he never discussed union activity or anything regarding the Union with Martin, and did not know whether Martin was aware of the union activity. Martin testified that he purchased a six pack of beer at the H. A. W. Package Store after leaving the terminal about 8:30 p.m.; that Dull and Ratledge came in the store while he was making the purchase, and Ratledge, after asking him if he 10 Ratledge testified that this was the first time Marks had extended this kind of an invitation to him. The record is silent as to whether they had had any other type of friendly get together or association . Marks did not deny having this conversation when he testified. After evaluating the demeanor and other testimony of Ratledge and Marks in the context of the record, I have credited the testimony of Ratledge. 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drank "that stuff" and he had answered, "Yes," went back outside; that he went out the door after completing the purchase, and Ratledge was by the door; that Rat- ledge asked him why he disliked him, he answered that he did not particularly dis- like him, Ratledge replied that he heard he did, to which he rejoined it was not true that he disliked him, and asked him what was wrong with him; 11 that he put his right hand in his right pocket, reaching for his car keys, and Ratledge said, "Get your damned hand out of your pocket," and hit him on the left side of his jaw, causing a bruise; that Dull stepped in between them and grabbed Ratledge, and said, "Let's go, come on, Fred, let's go home," and Fred said, "I will get you, you little S013, I will get you"; that he left and got in his car and drove off. Martin denied that he called Ratledge the name Ratledge testified he called him. He also testified that he did not report the incident to District Agent Vigue until the next day as he believed that Ratledge would apologize since he had been drinking. He also testified that he knew Ratledge had been drinking when he saw him on March 31. Vigue testified that Martin reported the incident about 6 p.m. on April 1. Vigue's testi- mony of what Martin said to him coincides with Martin's testimony of what hap- pened at the H.A.W. Package Store on the evening of March 31. Dull testified that by coincidence he met Ratledge as they were both on the way to the package store, and they went into the store together; that Martin was in the store, and that Ratledge went back out and waited outside; that he saw the alterca- tion through the screen door, and went out and jumped between them, and grabbed Ratledge by both lapels; that he was close to him and did not smell liquor on his breath; that he did not hear what was said prior to the blow, and nothing was said in his presence after he jumped between them and held Ratledge. From an evaluation of the above testimony in the context of the record, the demeanor testimony of the witness, and from my personal observation that Rat- ledge is over 6 feet in height, and appears to be in good physical condition; and Martin is about 5 feet 8 or 9 inches in height or less, about the same build, and also appears to be in good physical condition, I credit the testimony of Martin. Ratledge, upon seeing Martin, left the store without making any purchases and waited outside. Obviously, he did so for some reason. I find that the reason was u On cross-examination, Ratledge testified that when he and Dull were working on New Year's Eve as volunteers, an incident occurred involving them and Martin. Martin had just been transferred to the Atlanta terminal He had been working for Respondent about 6 years. When Vigue talked to them the evening prior to New Year's Eve, the weather was stormy and it was freezing. Vigue told them to have chains on the tractors and keep them in the heated garage However, Martin had the chains removed before they took the tractors out the next morning Ratledge reported to Vigue that Martin had the chains removed before they were taken out. He said he felt he had to make this report as he and Dull had a direct order from him to have chains on the tractors Vigue told Ratledge that when he gave the order everything was frozen solid, but when they took the tractors out the ice had turned to slush and was "fast melting" Vigue testified at the hearing that before the tractors were taken out, the weather had changed from what it had been, and the snow had turned to slush. Ratledge never talked to Martin about the removal of the chains although Dull had. On cross-examination, Ratledge also testified that about 2 or 3 months after Martin was transferred to the Atlanta terminal, he had a colloquy with Martin regarding a tractor he had taken out on his deliveries and pickups. In accordance with instructions, Ratledge took a certain tractor from a line in back of the maintenance shop. This place was reserved for vehicles needing repair or maintenance. This line of vehicles was known as a deadline. When delivering freight in Atlanta Ratledge found that the tractor had an air leak. He Informed Martin by telephone. The latter told him he should not have taken the tractor out, and Ratledge replied he was ordered to do so. Ratledge asked that another tractor be driven to him, and Martin refused at first, saying that Ratledge should drive the tractor back to the terminal as he had taken it off the deadline. Ratledge refused, saying it was unsafe. Martin then had another tractor brought to him, and had the one in need of repair brought back to the shop. I credit Croft's testimony that about 6 p.m. of the same day that Ratledge took the tractor off the deadline, and had the telephone conversation with Martin, he came into Croft's office and related what had taken place between him and Martin, and said that some of the labor problems were being caused in the shop, that Martin was giving them, including himself, a hard time, and that he was not going to sidestep him any more. Croft said he would take the matter up with Vigue. He reported to Vigue that day what Ratledge said about stand- ing up to Martin as well as the incident regarding the tractor with the leaking airline. OVERNITE TRANSPORTATION COMPANY 1285 to confront Martin as he had told Croft he would a short time before when the incident occurred involving the deadlined tractor. Martin was the smaller man, and a supervisor. Ratledge did not give any explanation for his departure from the store without making his purchase, and his waiting outside. While I do not credit Martin's opinion testimony that Ratledge was drinking, neither do I credit Rat- ledge's conclusionary testimony that he had not been drinking, even though sup- ported by Dull's testimony that he did not smell liquor on him, or Ratledge's own testimony that he had been at home with his wife and children for the 2 hours and a half after he finished work for the day, and made a trip to the store close to the terminal merely to purchase a loaf of bread and some cigarettes. Since the election was to be held on Friday, April 3, just 2 days and a night from the meeting with Martin, it could well be that Ratledge and Dull, two of the employee leaders of the union organizing activity, were out together organizing. There is no testimony showing that Ratledge lived in the vicinity of the terminal, or that the vicinity was a residential area, or that he would normally go to a store just a mile from the termi- nal from his home to make an incidental purchase. Martin, on the other hand, had just left the terminal. His presence at the store was logically explained. I find from the testimony of Ratledge on direct and cross-examination, and the testimony of Vigue that the following took place when Ratledge was discharged on April 2, 1964. When Ratledge reported for work at 7 a.m. on April 2, his card was not in the rack. He was informed by Terminal Manager Croft that he did not have one. Croft told Ratledge, in response to his question, that he did not want to see him, but believed Vigue did. Vigue arrived at the terminal about 8:30 a.m. Vigue and Ratledge had a conversation in the latter's office. Vigue said he was surprised at his hitting Martin. Ratledge said that if Vigue called him what Martin called him he would hit him. Vigue asked what he called him, and Ratledge described the incident to him, as he testified about it at the hearing. Vigue then said he had not known that the incident was what he said it was, and that he should have come to him and let him handle it. He also said that he could not have this sort of thing going on between supervisors and employees, and would have to fire him. He extended a check to Ratledge for his wages and asked him to sign a form which was an acknowledgment that he received the check, and had been involun- tarily terminated. Ratledge refused to sign, and left without the paycheck. I credit Vigue's testimony that he had previously discharged two employees for assaulting a supervisor. Analysis and Conclusions On the above evidentiary findings, I make the following analysis and conclusions. The blue-banded notice Respondent placed on the bulletin board for employees and distributed to them by mail in February (supra), with the exception of the para- graph identified as paragraph (6), constitutes a threat within the meaning of Section 8 (a) (1) of the Act. This becomes apparent when it is considered with the coercion exerted on employees by District Agent Vigue as disclosed by his conversations with employees Simms, Avery, and Ratledge. The coercive aspect of the notice stems from the first numbered paragraph which reads: This matter is, of course, one of concern to the Company. It is also, how- ever, a matter of serious concern to you and our sincere belief is that if the Union were to get in here it would not operate to your benefit but, in the long run would itself operate to your serious harm.'2 I find and conclude that paragraph (6) of the above notice constitutes neither a threat nor promise of benefit within the meaning of Section 8(a)(1) of the Act. It is a notice of a valid no-solicitation rule, and is not violative of the Act.13 I find and conclude that District Agent Vigue in his conversation with driver Henry C. Simms on March 31, 1964 (supra), violated Section 8(a)(1) of the Act. He interrogated Simms about his union activity, and the way he would vote in the Board-conducted election on April 3, 1964; promised him benefit if he voted against the Union, and threatened him with reprisals if he voted for the Union; and threat- ened to discharge employees Wyke, Dull, and Ratledge for leading the organizational activity. 'White Oak Acres, Inc., 134 NLRB 1145, 1146, 1150; Rea Construction Company, 137 NLRB 1769, 1774; Morris & Associates, Inc., 138 NLRB 1160, 1161; Cleveland Woolens, a Division of Burlington Industries, Inc., 140 NLRB 87, 93. 13 Carolina Mirror Corporation, 123 NLRB 1712, 1713. 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find and conclude that District Agent Vigue in his conversation with driver Daniel Avery on March 31, 1964 (supra), violated Section 8(a)(1) of the Act. He threatened him and the other employees with a refusal by Respondent to sign a collective-bargaining contract with the Union, and with lower job classifications and wages, if they selected the Union as their bargaining representative in the Board- conducted election on April 3, 1964. He also promised Avery and the other employees benefit if they rejected the Union as bargaining representative in this election. I have considered Vigue's statement, that employees with greater senior- ity in terms of more years of employment would have preferences under a union contract (supra), to constitute a threat as it was a misrepresentation designed to mislead Avery and other employees into believing their jobs would be in jeopardy if the Union won the election. The employees having more years of employment than Avery and the other drivers were not in the drivers' classification. and, therefore, under ordinary circumstances, could not compete for the drivers' jobs. Absent a showing that they would be competitors of Avery and other drivers, which was not made, it is a statement contrary to fact and a threat. I find and conclude that Respondent violated Section 8(a)(1) of the Act by Safety Director Mark's statements to Ratledge, in his conversation with him on or about March 1, 1964, that Respondent never needed, and never would need, a union, and would never sign a union contract (supra), and by his interrogation of Ratledge about the end of March 1964 regarding his feelings about the Union (supra). I find and conclude that Respondent did not violate the Act by Vigue's conversa- tion with Ratledge on February 17, 1964 (supra), and Dock Foreman Baker's con- versation with him about the end of March 1964 (supra). In the first conversation, Vigue reprimanded Ratledge for soliciting on working time and on company prem- ises. While Ratledge gave testimony of his denial to Vigue that he engaged in such activity, there is no direct evidence that he did not engage in it, or that Vigue did not have a reasonable belief that he engaged in it in view of what four employees had reported to him, or other supervisors. There was in existence at the time a valid no-solicitation rule. Ratledge engaged Baker in the conversation he had with him. He asked him if he had said he wanted him to stop soliciting the road drivers Baker said he did, and also said to Ratledge that a driver by the name of Churchill had reported that Ratledge had solicited him. There is nothing coercive in the statement by Baker. I find and conclude that Respondent did not discriminatorily discharge employee Styles on March 27, 1964, or employee Ratledge on April 2, 1964, or illegally refuse to reinstate these employees (supra). By refusing to cross the picket line at the Warren Company premises, Styles has been on strike with the status of an eco- nomic striker, and has been at least temporarily replaced by Respondent. There is no evidence of record that the picketing at Warren has ended or, in any event, that Styles has made an unconditional application for reinstatement. 14 Ratledge, on this record, was discharged for assaulting Supervisor Martin. The record discloses the unlikelihood that Respondent would risk discharging a leader of the union activ- ity, a few days before the date of the Board-conducted election, if the discharge could be attributed to his union activity. The fact that Ratledge engaged in conduct at the height of the union activity for which Respondent was justified in discharging him, does not make the discharge discriminatory. The right of an employer to operate his business is not suspended during this period.15 N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. 1 Redwing Carriers, Inc., et at, 137 NLRB 1545, sub nom enfd. Teamnstere, Chauffeurs & Helpers Local 'Union No. 79 v. N.L.R.B., 325 F. 2d 1011 (C.A.D.C.), cert denied 377 U.S. 905. 36 Lloyd A . Fry Roofing Company, 85 NLRB 1222, 1223-1224 ; N.L.R.B. v. Clearwater Finishing Co , 216 F. 2d 608 (C.A. 4), modifying and enfg 108 NLRB 268; Ridge Growers, Inc. v. N.L.R.B., 211 F. 2d 752 (C.A. 5), enfg. 101 NLRB 744. OVERNITE TRANSPORTATION COMPANY V. THE REMEDY 1287 Having found that Respondent engaged in certain unfair labor practices, I shall recommend that Respondent be required to cease and desist from such unfair labor practices, and take such affirmative action as appears necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent, Overnite Transportation Company, is engaged in commerce within the meaning of the Act, and Truck Drivers and Helpers Local Union 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. 2. Respondent by the notice of February 1964, Vigue's conversation with Simms and Avery, and Mark's conversation with Ratledge, made threats and promises of benefit to employees to persuade them to refrain from union membership and union activity, and to vote against the Union in a Board-conducted election, in violation of Section 8(a) (1) of the Act. 3 Respondent did not violate the Act by District Agent Vigue's conversation with Ratledge on February 17, 1964, or by Dock Foreman Baker's conversation with him at the end of March 1964, or by paragraph (6) of the notice to employees of February 1964. 4. Respondent has not discriminated against employees in violation of Section 8(a)(3) and (1) of the Act by the termination of the employment of employee Styles on March 27, 1964. 5. Respondent has not discriminated against employees in violation of Section 8(a)(3) of the Act by a refusal to reinstate employee Styles. 6. Respondent has not discriminated against employees in violation of Section 8(a)(3) of the Act by the discharge of employee Ratledge on April 2, 1964, or by not reinstating him or offering to reinstate him. 7. The aforesaid unfair labor practices found to have been committed by Respond- ent are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent, Overnite Transportation Company, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Interrogating employees with respect to union activity or other concerted activity, in a manner constituting interference with, coercion, or restraint of employ- ees in violation of Section 8(a) (1) of the Act. (b) Threatening employees, orally or by notice or other writing, with reprisals if they engage in union activity, or other concerted activity, or join or select the Truck Drivers and Helpers Local Union 728, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization , as their collective-bargaining representative. (c) Promising employees benefit if they refrain from joining the above Union, or any other labor organization, or reject it as collective-bargaining representative, or abandon union activity or other concerted activity. (d) Or by like or related conduct interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to join or assist the above Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Post at its terminal in Atlanta, Georgia, copies of the attached notice marked "Appendix." 16 Copies of said notice, to be furnished by the Regional Director for 161f this Recommended Order be adopted by the Board , the words " a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order". 1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 10, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the receipt of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to comply herewith.17 It is also recommended that the complaint be dismissed insofar as it alleges viola- tions of the Act found herein not to violate the Act. It is further recommended that unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision and Recommended Order the Respondent notifies the said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. '7 In the event that this Recommended Order Is adopted by the Board, paragraph 2(b) thereof shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT question employees with respect to union activity or other con- certed activity, in a manner constituting interference with, coercion, or restraint of employees in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. WE WILL NOT threaten employees orally, or by notice or other writing, with reprisals if they engage in union activity, or other concerted activity, or become members of, or select the Truck Drivers and Helpers Local Union 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, as their collective- bargaining representative. WE WILL NOT promise employees benefits if they abandon union membership, union activity, or other concerted activity, or reject the above Union or any other labor organization as collective-bargaining representative. WE WILL NOT by like or related conduct interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to join or assist the above Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act, as amended. All our employees are free to become or remain, or refrain from becoming or remaining, members of Truck Drivers and Helpers Local Union 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers, or any other labor organization. OVERNITE TRANSPORTATION COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-3311, Extension 5357, if they have any questions concerning this notice or compliance with its provisions.